Are there more releases to come?
TAHA AKYOL
Yes, I’m expecting the release of more suspects in the Ergenekon case and other related cases. Why? Because the possibility of “[changing] the classification of their offences” has arisen.The court for the first time has mentioned this possibility for the first time, and has released Nedim Şener and three others who had been arrested. The reason for this is a bill that has been submitted to Parliament that would amend the anti-terrorism law (TMY). According to the bill, prepared by the Justice Ministry, some arrested defendants will not be considered “members of a terror organization.” In light of this, the court decided to release these four. What could be more natural than that it would decide to release more of those under arrest in similar situations?
According to the second article of the current TMY, a person, even if he or she is not a member of a terrorist organization, commits a crime on behalf of the organization, for example putting up posters, holding demonstrations or writing columns or books, then that person is punished as if he or she were a “member of the organization.”
The punishment for this is a period of penal servitude ranging in duration from 7.5 years to 15 years! The detention periods are also long indeed.
Classification of crime is changing
In the Justice Ministry bill, in order to “accelerate the practice of justice,” the provision of the second article of the TMY that such persons “will be punished as if they were members of the organization” is revoked. In this case, it will be impossible to punish as “members of a terrorist organization” people who commit acts such as holding a placard, writing books, or marching in a demonstration.
Any of these acts could still individually constitute a crime; for example, crimes such as inciting animosity, violence, or insult, but those who commit them will not be considered “members of a terrorist organization.” There could be lighter crimes involved, but if not, they will be acquitted.
This is the real reason behind the release of Nedim Şener and the three others. I would also like to congratulate Nedim Şener for maintaining his gentlemanly attitude during his release, as always.
In the bill submitted by the Justice Ministry, for offences involving “aiding and abetting…,” the judge is authorized to reduce the penalty up to 20 months. Because the bill was prepared by the Justice Ministry, it is highly probable that it will be passed in Parliament and as I mentioned, the probability of a change in the classification of the offense is also high. It will not be surprising, then, when others currently being held are also released based on the same justification.
Sivas case again
Well, if this amendment to the TMY becomes law soon, how will it be applied to past acts? It could be applied, because it is in favor of the defendants…
In the Sivas case, the situation is the opposite. The new Turkish Penal Code (TCK) that went into effect in 2005 increased the statute of limitations to 30 years, against the interests of defendants. For this reason, it cannot be applied to the past, for example to the Sivas massacre, which happened in 1993. Under the old TCK, shorter periods applied, and unfortunately five defendants made use of the statute of limitations. Judicially, there was no other way.
When I first wrote this universal judicial fact, I received emotional reactions from readers. But please see that the lawyers for the victims of the Sivas incident also did not demand that the longer statute of limitations existing under the new TCK be applied, because they knew that it cannot be applied retroactively.
The aspect the lawyers in the Sivas case should focus on is the possibility of opening an investigation into public employees who may have committed negligence and protection offenses in the Sivas massacre. But in order for this process to begin, the administrative investigation files from that time should be revealed, without losing any more time, because this can also be barred by the statute of limitations!
takyol@hurriyet.com.tr
Taha Akyol is a columnist for the Hürriyet daily, in which this piece was published on March 15. It was translated into English by the Daily News staff.
